A Portland school bus joins the Portland Pride parade in June 2024. Sofia Aldinio/Portland Press Herald

The latest federal investigation launched against Maine is based on the idea that state and local policies about gender identity in schools violate a federal law governing access to student records.

The Department of Education says some Maine school districts allow staff to withhold a student’s information from their parents. But the group behind many of those policies say they are grounded in state and federal law.

The department announced through a letter to Education Commissioner Pender Makin on Friday that it had begun an investigation into Maine’s Department of Education over allegations that individual school districts and the state are violating the Family Educational Rights Privacy Act (FERPA), which governs access to student educational records.

The letter claims that Maine school districts’ policies violate FERPA by withholding from parents records about a student’s transgender status, like the choice to use a different name or pronouns at school. It says if districts are found to be in violation of that law, they could lose federal funding.

It offered no specific examples of districts withholding that information and appears to be directly inspired by an article in the conservative news outlet, The Federalist, which claims at least 57 Maine school districts have policies that allow districts to “hide critical medical and social information” from parents if their children create a “gender plan” at school.

Portland Public Schools, the state’s largest district, said in a statement Friday that it was unaware of any time that a parent had sought student records and not gotten them and that it will continue to support transgender and nonbinary students. Other districts said they weren’t aware of the new investigation, or did not respond to requests for comment.

A spokesperson for the Maine Department of Education did not answer specific questions about the investigation Monday, and directed questions to the Office of the Maine Attorney General. A spokesperson for that agency declined to comment.

The letter gives the department until April 11 to send either a report of steps the state has taken to comply or an explanation why the investigation is unwarranted.

MAINE HUMAN RIGHTS ACT

The Maine agency behind many of those policies says they’re based soundly on state and federal law — specifically, the Maine Human Rights Act, a state law that has been at the center of many of the Trump administration’s conflicts with Maine, namely those over policies around transgender athletes because it was amended in 2021 to add gender identity as a class protected from discrimination.

Friday’s letter from the DOE cites a memorandum from the Maine Human Rights Commission, which enforces the Human Rights Act, that says: “In the event that the student and their parent/legal guardian do not agree with regard to the student’s sexual orientation, gender identity, or gender expression, the educational institution should, whenever possible, abide by the wishes of the student with regard to their gender identity and expression while at school.”

Frank Miller, the acting director of the federal DOE’s Student Privacy Policy Office, said that gives school districts leeway to violate FERPA by withholding educational records from parents.

The addition of gender identity to the state’s Human Rights Act was the basis for a new policy crafted in 2022 by the Maine School Management Association, a state organization that provides model policies for school districts in the state.

But MSMA Executive Director Steven Bailey said he’s unsure what the federal government is concerned about, because the sample policy explicitly clarifies that parents have a right to access student records, and that, “students should be informed that parents/guardians have a right to access all education records of their child and therefore the school cannot keep the change in name and/or gender a secret.”

“Parents are still made known, and they have access to any of this information within the student’s education records,” Bailey said. “I don’t know what (the DOE) is making reference to in terms of the FERPA violation that they’re claiming is being made.”

MSMA is planning to send a note to superintendents and school board chairs with guidance on how to respond and an explanation of the law that forms the basis for the model policy.

Bailey said his organization worked with Portland-based law firm Drummond Woodsum to develop the model, and the sample is very clear that districts are not required to have a policy on the matter. He said some districts adopted the policy officially, some used it as an administrative protocol, some adopted an altered version of the policy and others considered but chose not to adopt it.

“It appears as if certain folks in the Department of Education right now are looking for ways to support the president’s efforts to undermine education efforts in Maine,” Bailey said. “It’s curious to me how they’re creating their own narrative.”

PARENTAL RIGHTS

There is at least one ongoing lawsuit in Maine that pertains to the new investigation. Lincoln County mother Amber Lavigne sued her child’s school district in 2023, alleging that employees supported her child’s gender identity change without her knowledge, including allowing them to use a different name and pronouns in school and providing them with a chest binder. A federal judge dismissed the case last May, but Lavigne appealed, and the 1st U.S. Circuit Court of Appeals heard arguments in the case in October.

Lavigne is being represented by the Goldwater Institute, an Arizona-based think tank that takes on similar cases around the country. The lead attorney on her case, Adam Shelton, said schools are cutting parents out of decisions made for their children and keeping them in the dark by not disclosing records.

“It is our position that the school violated Amber’s parental rights by depriving her of information of its own employees’ actions and decisions, including the giving of chest binders to and the social transitioning of her child. No one from the school ever informed Amber of these actions, and when Amber requested the records from the social worker who gave her child the chest binders, the school refused to turn them over under FERPA, claiming they were not educational records,” Shelton said in an emailed statement Monday. “This situation relates broadly to the DOE investigation because both involve schools withholding information from parents.”

The appeals court has yet to rule on Lavigne’s case.

The letter notifying the Maine DOE of the investigation also cites a state law that it says further inhibits parental record access. That law says a school counselor cannot be required, “to divulge or release information gathered during a counseling relation with a client or with the parent, guardian or a person or agency having legal custody of a minor client.”

Miller writes that this policy violated FERPA because it prevents parents from exercising their right to review education records, and could constitute a “systemwide FERPA violation.”